interpretation as a Court of Law, and is often compelled to stop where the letter of the law stops. It is the duty of every court of justice, whether of law or of equity, to consult the intention of the Legislature. And in the discharge of this duty a Court of Equity is not invested with a larger or a more liberal discretion than a Court of Law.1 15. Mr. Justice Blackstone has here again met the objection in a forcible manner. 'It is said,' says he, that a Court of Equity determines according to the spirit of the rule and not according to the strictness of the letter. But so also does a Court of Law. Both, for instance, are equally bound, and equally profess, to interpret statutes according to the true intent of the Legislature. In general, all cases cannot be foreseen; or, if foreseen, cannot be expressed. Some will arise which will fall within the meaning, though not within the words, of the legislator; and others, which may fall within the letter, may be contrary to his meaning, though not expressly excepted. These cases, thus out of the letter, are often said to be within the equity of an Act of Parliament; and so cases within the letter are frequently out of the equity. Here, by Equity we mean nothing but the sound interpretation of the law, &c. But there is not a single rule of interpreting laws, whether equitably or strictly, that is not equally used by the judges in the Courts both of Law and Equity. The construction must in both be the same; or, if they differ, it is only as one Court of Law may happen to differ from another. Each endeavors to fix and adopt the true sense of the law in question. Neither can enlarge, diminish, or alter that sense in a single tittle.' 2 6 16. Yet it is by no means uncommon to represent that the peculiar duty of a Court of Equity is to supply the defects of the common law, and next, to correct its rigor or injustice.3 Lord Kaims avows this doctrine in various places and in language singularly bold. It appears now clearly,' says he, 'that a Court of Equity commences at the limits of the common law, and enforces benevolence where the law of nature makes it our duty. And thus a Court of Equity, accompanying the law of nature, in its general refinements enforces every natural duty 1 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (h). 2 3 Black. Comm. 431; 1 Dane, Abr. ch. 9, art. 3, §3. that is not provided for at common law.' And in another place he adds, a Court of Equity boldly undertakes 'to correct or mitigate the rigor, and what in a proper sense may be termed the injustice of the common law.'2 And Mr. Wooddeson, without attempting to distinguish accurately between general or natural, and municipal or civil, equity, asserts that Equity is a judicial interpretation of laws which, presupposing the legislator to have intended what is just and right, pursues and effectuates that intention.' 3 17. The language of judges has often been relied on for the same purpose; and from the unqualified manner in which it is laid down, too often justifies the conclusion. Thus Sir John Trevor (the Master of the Rolls), in his able judgment in Dudley v. Dudley, says: 'Now equity is no part of the law, but a moral virtue, which qualifies, moderates, and reforms the rigor, hardness, and edge of the law, and is a universal truth. It does also assist the law, where it is defective and weak in the constitution (which is the life of the law), and defends the law from crafty evasions, delusions, and mere subtilties, invented and contrived to evade and elude the common law, whereby such as have undoubted right are made remediless. And thus is the office of equity to protect and support the common law from shifts and contrivances against the justice of the law. Equity therefore does not destroy the law nor create it, but assists it.' Now however true this doctrine may be sub modo, to suppose it true in its full extent would be a grievous error. 18. There is another suggestion which has been often repeated; and that is, that Courts of Equity are not, and ought not to be, bound by precedents, and that precedents therefore are of little or no use there; but that every case is to be decided upon circumstances, according to the arbitration or discretion of 1 1 Kaims on Equity, Introd. p. 12. 2 Id. Introd. p. 15. Lord Kaims's remarks are entitled to the more consideration, because they seem to have received in some measure at least the approbation of Lord Hardwicke (Parke's Hist. of Chan. Appx. 501, 502; Id. 333, 334); and also from Mr. Justice Blackstone's having thought them worthy of a formal refutation in his Commentaries. (3 Black. Comm. 436.) 8 1 Wooddeson, Lect. vii. p. 192. Preced. in Ch. 241. 244; 1 Wooddes. Lect. vii. p. 192. the judge, acting according to his own notions ex æquo et bono.1 Mr. Justice Blackstone, addressing himself to this erroneous statement, has truly said: The system of our Courts of Equity is a labored connected system, governed by established rules, and bound down by precedents from which they do not depart, although the reason of some of them may perhaps be liable to objection, &c. Nay, sometimes a precedent is so strictly followed, that a particular judgment, founded upon special circumstances, gives rise to a general rule.'2 And he afterwards adds: The system of jurisprudence in our Courts of Law and Equity are now equally artificial systems, founded on the same principles of justice and positive law, but varied by different usages in the forms and mode of their proceedings.' The value of precedents and the importance of adhering to them were deeply felt in ancient times, and nowhere more than in the prætor's forum. • Consuetudinis autem jus esse putatur id,' says Cicero,quod, voluntate omnium, sine lege, vetustas comprobarit. In ea autem jura sunt, quædam ipsa jam certa propter 3 1 See Francis, Max. pp. 5, 6; Selden, cited in 3 Black. Comm. 432, 433, 435; 1 Kaims, Eq. pp. 19, 20. 2 3 Black. Comm. 432, 433. 3 Black. 434; Id. 440, 441; 1 Kent, Comm. Lect. 21, pp. 489, 490 (2d edition). The value and importance of precedents in chancery were much insisted upon by Lord Keeper Bridgman, in Fry v. Porter (1 Mod. R. 300, 307). See also 1 Wooddes. Lect. vii. pp. 200, 201, 202. Lord Hardwicke in his letter to Lord Kaims on the subject of Equity, in answer to the question whether a Court of Equity ought to be governed by any general rules, said, 'Some general rules there ought to be; for otherwise the great inconvenience of jus vagum et incertum will follow. And yet the prætor must not be so absolutely and invariably bound by them as the judges are by the rules of the common law. For if they were so bound, the consequence would follow, which you very judiciously state, that he must sometimes pronounce decrees which would be materially unjust, since no rule can be equally just in the application to a whole class of cases that are far from being the same in every circumstance.' (Parke's Hist. of Chancery, pp. 501, 506.) This is very loosely said, and the reason given equally applies to every general rule; for there can be none which will be found equally just in its application to all cases. If every change of circumstance is to change the rule in equity, there can be no general rule. Every case must stand upon its own ground. Yet Courts of Equity now adhere as closely to general rules as Courts of Law. Each expounds its rules to meet new cases; but each is equally reluctant to depart from them upon slight inconveniences and mischiefs. See Mitford, Plead. in Eq. p. 4, note (b); 1 Fonbl. Eq. B. 1, ch. 1, § 3, note (k). The late Professor Park of King's College, London, has made some very acute remarks on this whole subject in his Introductory Lecture on Equity (1832). vetustatem ; quo in genere et alia sunt multa, et eorum multo maxima pars, quæ prætores edicere consuerunt.' 1 And the Pandects directly recognize the same doctrine. Est enim juris civilis species, consuetudo; enimvero, diuturna consuetudo pro jure et lege, in his, quæ non ex scripto descendunt observari, solet, &c. Maxime autem probatur consuetudo ex rebus judicatis.' 2 19. If indeed a Court of Equity in England did possess the unbounded jurisdiction which has been thus generally ascribed to it, of correcting, controlling, moderating, and even superseding the law, and of enforcing all the rights, as well as the charities, arising from natural law and justice, and of freeing itself from all regard to former rules and precedents, it would be the most gigantic in its sway, and the most formidable instrument of arbitrary power, that could well be devised. It would literally place the whole rights and property of the community under the arbitrary will of the judge, acting, if you please, arbitrio boni judicis, and, it may be, ex æquo et bono, according to his own notions and conscience; but still acting with a despotic and sovereign authority. A Court of Chancery might then well deserve the spirited rebuke of Selden: For law we have a measure, and know what to trust to. Equity is according to the conscience of him that is chancellor; and as that is larger or narrower, so is equity. 'Tis all one as if they should make the standard for the measure the chancellor's foot. What an uncertain measure would this be! One chancellor has a long foot, another a short foot, a third an indifferent foot. It is the same thing with the chancellor's conscience.' 3 And notions of this sort were, in former ages, when the Chancery Jurisdiction was opposed with vehement disapprobation by common lawyers, very industriously propagated by the most learned of English antiquarians, such as Spelman, Coke, Lambard, and Selden.* We might indeed under such circumstances adopt the language of Mr. Justice Blackstone, and say: In short if a Court of 1 Cicero de Invent. Lib. 2, cap. 22. My attention was first called to these passages by a note of Lord Redesdale. Mitford, Plead. Eq. p. 4, note (b). See Heineccius De Edictis Prætorum, Lib. 1, cap. 6, §§ 13, 30. 2 Pothier, Pand. Lib. 1, tit. 3, art. 6, n. 28, 29; Dig. Lib. 1, tit. 3, 1. 33, 1. 34. 3 Selden's Table Talk, title Equity;' 3 Black. Comm. 432, note (y). * See citations, 3 Black. Comm. 433; Id. 54, 55; Id. 440, 441. Equity in England did really act, as many ingenious writers have supposed it (from theory) to do, it would rise above all law, either common or statute, and be a most arbitrary legislator in every particular case. So far however is this from being true, that one of the most common maxims upon which a Court of Equity daily acts is, that equity follows the law, and seeks out and guides itself by the analogies of the law.2 20. What has been already said upon this subject cannot be more fitly concluded than in the words of one of the ablest judges that ever sat in equity. There are,' said Lord Redesdale, certain principles on which Courts of Equity act, which are very well settled. The cases which occur are various, but they are decided on fixed principles. Courts of Equity have in this respect no more discretionary power than Courts of Law. They decide new cases, as they arise, by the principles on which former cases have been decided; and may thus illustrate or enlarge the operation of those principles. But the principles. are as fixed and certain as the principles on which the Courts of Common Law proceed. In confirmation of these remarks it may be added that the Courts of Common Law are, in like manner, perpetually adding to the doctrines of the old jurisprudence, and enlarging, illustrating, and applying the maxims which were at first derived from very narrow and often obscure sources. For instance, the whole law of Insurance is scarcely a century old; and more than half of its most important principles and distinctions have been created within the last fifty years. 21. In the early history of English Equity Jurisprudence there might have been, and probably was, much to justify the suggestion that Courts of Equity were bounded by no certain limits or rules; but they acted upon principles of conscience and natural justice, without much restraint of any sort. And as the chancellors were for many ages almost universally either eccle 1 3 Black. Comm. 433; Id. 440, 441, 442. De Lolme, in his work on the Constitution of England, has presented a view of English Equity Jurisprudence far more exact and comprehensive than many of the English textwriters on the same subject. The whole chapter (B. 1, ch. 11) is well worthy of perusal. 2 Cowper v. Cowper, 2 P. Will. 753. 8 Bond v. Hopkins, 1 Sh. & Lefr. R. 428, 429. See also Mitford on Plead. Eq. p. 4, note (b). 41 Kent, Comm. Lect. 21, pp. 490, 491, 492 (2d edit.). VOL. I.-2 |